Citation Nr: 18160062 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 18-14 185 DATE: December 21, 2018 ORDER New and material evidence having not been received, the petition to reopen a claim of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for type 2 diabetes mellitus (diabetes) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran did not timely appeal the January 2002 rating decision that denied service connection for PTSD; this rating decision became final. 2. Evidence received since the January 2002 rating decision does not relate to a previously unestablished element of the claim of service connection for PTSD and does not raise a reasonable probability of substantiating the claim. 3. The weight of the evidence is against a finding that the Veteran’s diabetes mellitus is related to his active service. CONCLUSIONS OF LAW 1. The January 2002 rating decision is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has not been received since the January 2002 rating decision, and the Veteran’s claim of service connection for PTSD is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for diabetes have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1979 to August 1985. This matter is on appeal from a January 2015 rating decision. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 1. New and material evidence having not been received, the petition to reopen a claim of service connection for posttraumatic stress disorder (PTSD) is denied. Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). For the following reasons, new and material evidence has not been received with regard to the Veteran’s claim for service connection PTSD because there was no verified in-service stressor and no evidence of a nexus between the Veteran’s PTSD and service. To reopen the claim, there would have to be new evidence that related to either basis for the prior denial or the new evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. See Shade, 24 Vet. App. at 118. In January 2002 rating decision, the RO denied service connection for a nervous condition, to include PTSD. It was determined that the claimed stressor incidents during service had not been corroborated. The Veteran did not appeal that decision, nor was new and material evidence received within the remaining appeal period. Accordingly, the January 2002 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105 (c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The relevant evidence of record at the time of the January 2002 rating decision included the Veteran’s service treatment records (STRs), service personnel records, VA treatment records, and statements from the Veteran. In particular, STRs did not reflect in-service complaints, treatments, or diagnosis of PTSD. The remaining evidence failed to verify the Veteran’s alleged in-service stressor or establish a nexus between the Veteran’s PTSD and service. Relevant evidence received more than one year since the January 2002 rating decision includes VA treatment records and Social Security Administration (SSA). Unfortunately, this new evidence is cumulative to evidence of record at the time of the January 2002 rating decision, as it merely reflects current symptoms. The new medical treatment records do not relate to an unestablished fact necessary to substantiate the merits of the claim because neither the VA treatment records or SSA records tend to verify the Veteran’s alleged in-service stressor, establish a nexus, or demonstrate continuity of symptomatology between the Veteran’s current PTSD and service. There is no new and material evidence, such as a medical opinion linking his current claim with a verified in-service event, which would either relate to the basis for the prior denial or that could reasonably substantiate the claim were the claim to be reopened. 2. Entitlement to service connection for diabetes. The Veteran contends that he has diabetes as a result of his active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran does have a current diagnosis of diabetes, the preponderance of the evidence does not indicate that it began during service or is otherwise related to an in-service injury, event, or disease. See 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303 (a), (d). The Veteran’s service treatment records do not contain findings or complaints referable to diabetes, such as showing sugar in his urine, or other symptomatology suggestive of diabetes. VA treatment records show that the Veteran was diagnosed with diabetes in October 2003, decades after his separation from service. The record indicates that the Veteran did not receive a VA examination to determine the nature and cause of his diabetes. VA’s duty to assist requires that it provide an examination when the record contains competent lay or medical evidence of a current disability and establishes that the Veteran’s claimed disability may be associated with an established in-service event, injury or disease. See 38 U.S.C. § 5103A (d). The evidence of record indicates that the Veteran suffers from a current disability, but does not suggest an in-service event, injury or disease related to his current diagnosis of diabetes. As such, VA was not required to obtain an examination to determine the nature and cause of the Veteran’s diabetes. See McLendon, 20 Vet. App. at 83. Service connection requires evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Board notes that the Veteran has not submitted lay evidence or medical evidence that describes a causal relationship between his diabetes and his service, nor has the Veteran submitted lay or medical evidence that suggest that he incurred diabetes during his service. The passage of time between the Veteran’s discharge and when his symptoms first manifested also weighs against the Veteran’s claim. See Maxson, 230 F.3d at 1333. Accordingly, the preponderance of the evidence indicates that the Veteran is not entitled to service connection diabetes. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU). Regarding a TDIU, under 38 C.F.R. § 4.16, if there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Board notes that a total rating may nonetheless be granted on an extra-schedular basis in exceptional cases (and pursuant to specifically prescribed procedures) when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16 (b). Here, the Veteran’s service-connected disabilities do not meet the percentage requirements for a schedular TDIU. The Veteran is service-connected for right medial meniscectomy, rated as 20 percent disabling from February 1, 1989, as 100 percent disabling from January 18, 2013, and as 30 percent disabling from March 1, 2014; hiatal hernia, rated as 10 percent disabling from August 31, 1985; residuals of left scapula fracture rated as noncompensable; and a right knee scar rated as noncompensable. He has a combined disability rating of 10 percent from August 31, 1985 to January 31, 1989, 30 percent from February 1, 1989 to January 17, 2013, 100 percent from January 18, 2013 to February 28, 2014, and 40 percent from March 1, 2014. The collective evidence of record reflects that the Veteran has been rendered unemployable since July 2013 (according to the Veteran and the SSA decision). Although the April 2013 VA examiner and the October 2014 VA examiner noted that the Veteran is able to perform a sedentary job, the SSA decision found that the Veteran was unable to gain meaningful employment. Particularly, the SSA decision relied on the opinion of a vocational expert who opined that the Veteran would be unable to perform any of his relevant work at past employments. SSA’s determination was based primarily on the Veteran’s osteoarthritic disabilities, to include the service-connected right and left knees. Based on the discussion above, the Board finds there is evidence that the Veteran may have been unable to secure and follow a substantially gainful occupation due to service-connected disabilities. Because the Board is precluded from considering entitlement to an extraschedular TDIU under 38 C.F.R. § 4.16 (b) in the first instance, remand is necessary for referral to VA’s Director of Compensation Service. The AOJ shall submit the Veteran’s TDIU claim to the Director of Compensation Service for extraschedular consideration under section 4.16(b). The matter is REMANDED for the following action: 1. Refer to the Director of Compensation Service the Veteran’s claim of entitlement to an extraschedular TDIU under 38 C.F.R. § 4.16 (b). 2. After completion of the above, adjudicate the issue of entitlement to an extraschedular TDIU under section 4.16(b). The AOJ must include a full statement as to the Veteran’s service-connected disabilities during this period, his employment history, his education history, and all other factors having a bearing on the issue. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel